Feldman v. Brodsky

Stevens and Eager, JJ. (dissenting).

We dissent. In our opinion the charging against plaintiff and the allowance to defendant of post-judgment interest of $13,276.46 covering *352period from February 26, 1958 to December 30, 1959 was improper, and the order appealed from should be accordingly modified.

The judgment here provided that an escrow agent (a bank) holding on deposit the sum of $180,000 should pay plaintiff therefrom $58,544.33, together with interest thereon at 6% from a certain date, in full payment and satisfaction of damages awarded to plaintiff in the action and that it “ shall pay the entire balance of said deposit with bank interest accrued thereon to defendant, Irving Brodsky, in full payment of the balance of the purchase price of ” certain stock. The post-judgment interest now awarded to the defendant is interest on the portion of the sum payable to the defendant for the period representing plaintiff’s unsuccessful appeal to the Court of Appeals. We are of the opinion that the allowance of this interest was improper upon the grounds:

First, such allowance in effect constituted an unauthorized modification of the judgment herein which was affirmed by this court and by the Court of Appeals. It does in effect modify such judgment in that it has the effect of deducting the amount of such interest, to wit, $13,276.46, from the amount payable under the terms of the judgment to plaintiff and adding the same to the amount payable thereunder to the defendant. It is to be noted that, under the judgment, the only interest that the defendant was entitled to receive was ‘ ‘ the bank interest accrued ’ ’ upon the deposit held by the escrow agent; and it appears that the deposit earned no interest during the period for which interest is allowed.
Second, the order of the court herein providing' for the depositing of the sum of $180,000 with the bank as escrow agent had the effect of holding up the payment of the money without right of either party thereto pending the termination of the action or the further order of the court. Thereafter, judgment in the action had the effect of modifying the order to entitle the parties to receive the sum in accordance with the directions of the judgment. There were cross appeals to the Appellate Division and as the learned court below held, the payment over of the deposit as provided for in the judgment was suspended until February 26,1958, when the judgment was affirmed by the Appellate Division. Thereafter, there was no restraint upon the right of the defendant to have the sum directed by the judgment to be paid to him out of the deposit. It was at least incumbent upon the defendant to make demand for such money. It may not be speculated that the escrowee, absent the existence of any restraint upon it, would have refused payment. We should not, *353upon such speculation, award interest at the expense of the plaintiff.
Third, and in any event, there was no authority for the allowance of the interest upon motion. Clearly, the recovery of interest upon a judgment by means of a motion in the' action may not be had upon mere equitable grounds and would be proper only where specifically authorized by statute. In our opinion, section 481 of Civil Practice Act does not apply where, as here, the judgment is one directing the payment over of a sum of money by an escrow agent.

Botein, P. J., and Valente, J., concur with Bergan, J.; Stevens and Eager, JJ., dissent in opinion.

Order, entered on June 28, 1960, as directed the depositary bank to pay to the defendant statutory interest for the period February 26,1958 to December 30,1959 on the judgment entered June 4, 1957, affirmed, with $20 costs and disbursements to the respondent.